Appeals court rules description of gang suspect admissible

YAKIMA, Wash. -- Was a Yakima County judge right to allow testimony about how a robbery suspect was dressed like a Smurf? An appeals court Tuesday said yes.

At issue was the robbery conviction of Ernesto Ruiz Cervantes, 21, who is currently serving eight years in prison for attacking another youth in Wapato in 2009.

According to testimony in the case, the victim was riding his bike home shortly after midnight on New Year's Day when a car roared up behind him, causing him to crash.

The victim testified a young man he knew as "Smurf" jumped from the car and, brandishing a knife, demanded to know "What do you bang?"

The victim testified that after he denied being in a gang, "Smurf" robbed him of his belongings, including an iPod, and punched him in the head. Cervantes was subsequently identified by the victim as "Smurf" and prosecuted.

On appeal, Cervantes complained that testimony about his moniker and blue attire -- a color commonly associated with Sureo gang members as well as the cartoon characters -- was prejudicial and that allowing it was an abuse of discretion by Superior Court Judge Michael McCarthy.

But the Division III Court of Appeals in Spokane said that while gang affiliation would normally be protected free speech, it might not be if it went to motive.

More to the point, the court noted that prosecutors used the testimony about Cervantes being known as "Smurf" only to establish the identity of the robber.

And on that point there was little doubt. Not only did the victim and the police know Cervantes as "Smurf," he apparently dressed the part -- blue shoes, a blue belt and mushrooms similar to those in the Smurf cartoons were engraved on his belt buckle.

"The fact that the defendant was also dressed in Smurf attire when arrested further established the identity of the robber," appeals court Judge Kevin Korsmo wrote, concluding:

"The evidence was admissible and highly probative. The prejudicial impact was comparatively slight."